In the contemporary scenario, custodial death and extra-judicial killings have become a matter of great concern for the criminal justice system in India. Both are perhaps the worst crimes in a civilised society governed by the rule of law. The power conferred on law enforcement wing ’empowers’ them to justify their arbitrary actions boosted with public and executive support. Such arbitrary actions put the constitutional provisions and rule of law at stake. Thus, the situation demands major criminal reforms and judicial interference into such matters.

Introduction

Abhorrent practices, arbitrary and retaliatory killings, judicial torture, shootout, etc are few among various jargon that highlights the present scenario of police brutality either through extra-judicial killings or custodial deaths. Ironically, neither of these terms have a definition in law till date. Where the former is the killing of alleged accused by governmental authorities without any judicial order, the latter is death through either illness, torture, suicide or accident in police or judicial custody.

Both have two things in common; first is its arbitrary nature. United Nation defines it as an action against or not in conformity with the law and refers to the arbitrary deprivation of life arising from the execution of such actions which is not preceded by proper legal proceedings but from torture or ill-treatment and from the excessive use of force carried out by the police, army or other states. The second commonality is the very blatant attempt of eroding the rule of law and constitutional values in an established democratic country and the further consequences that follow. 

The Story of Killings, Precedents and Guidelines

The recent examples of custodial deaths such as the killing of George Floyd in U.S, P Jeyaraj and his son J Bennix in Karnataka or the most recent encounter of Vikas Dubey has sparked a heated debate. The debate of violation of international human rights, breaking the rule of law coupled with unauthorized and transcending power of law enforcement units in such unjustified killings. 

This is not a novel concern. In fact, these problems are just an addition to various instances globally. D.K Basu v State of West Bengal and PUCL v State of Maharashtra are two ruling landmark judgements delivered by the Hon’ble Supreme Court laying down guidelines to ensure the rights of prisoners in custody and standard procedure for effective investigation in extra-judicial killings, respectively. National Human Rights Commission (NHRC) has been assisting the apex court in framing guidelines while diligently publishing data on custodial, encounter death and of major human rights violations since the last two decades.

Both judgements emphasised on the importance of Article 21 of the constitution which is available to every person and it was asserted that even the State has no authority to violate this right. The same premise was emphasised in Sathyavani Ponrani v Samuel Raj and it was quoted that “right to free and fair investigation and trial is enshrined in article 14 and 21 of the constitution”. The apex court has, also, through various other precedents reiterated various times the heinous criminal nature existing in such killings which not only affects the rule of law in a democracy but also hinders the proper implementation of the criminal justice system. 

Despite so many efforts by the apex court, NHRC and through other law reforms, there seems no restrain and reduction of such arbitrary actions by the police enforcement wing. According to The National Campaign Against Torture report, a total of 1,731 persons died in custody during 2019 i.e. five persons daily. These included 1,606 deaths in judicial custody and 125 deaths in police custody. Out of 125, 93 deaths were a consequence of foul play and alleged torture. Torturing methods include hammering iron nails in body, hitting in private parts, electric shock, rape and other such inhuman and disgusting actions.

Is this the extent of police brutality in India? Even thousands of alleged minor accused were inflicted with simple and grievous hurt. How much more evidence one might need for a change? And yet, there has not been a single conviction in the deaths of 500 persons allegedly due to torture in police custody between 2005 and 2018. NHRC report shows a total 837 police encounters and 714 deaths in police custody which were reported between 2013-2018. In both cases, Uttar Pradesh tops the list in custodial deaths, fake encounters and human rights violation with more than 100 cases of extra-judicial killings since 2017. The situation never improved and left a question as to why. 

Conundrum in the Contribution of Public Opinion.

According to a report by NHRC, the two prominent reasons behind the increase in such arbitrary actions of the law enforcement wing are the public response and delay in deliverance of criminal justice. In cases such as that of Vikas Dubey or the alleged accused of Hyderabad Rape Case, a significant group of citizens publicly applauded such encounters. As per the report “The public, particularly the educated middle class, also do not mind if the police take the law in their own hands and become executioners, particularly with regard to the dreaded criminals.”

Public opinion is majorly shaping such actions. What public perception fails to understand is the bigger picture which comes as a consequence of patronizing extra-judicial killings that also leads to deprivation of individual rights of various “innocents” or “alleged” accused. On one hand, the public condemn custodial death such as that of P Jeyaraj but on the other, they applaud encounters such as that of Vikas Dubey. Nobody calls in question as to why the police authorities were unable to contain such a criminal in the first place? How was a criminal with 60 FIRs released on bail? How and who will now justify the other charges on such a criminal which was extinguished at the stroke of an encounter? The encounter which could have revealed the ties of the accused with several powerful hands but instead saved all of them.  

Public applause gives motivation to unregulated actions of the law enforcement agency. The discriminative public response boosts the authoritative and undiscriminating power of police authorities who fail in differentiating in situations while enforcing their excessive power. This mentality is also triggered by the reverse psychology conveyed through the media and entertainment industry. They portray the normalcy and celebratory acceptance of the whimsical decision of delivering justice by law enforcement wings at their will, irrespective of the consequence.

Such activities are also welcomed by executive and government bodies because they successfully portray them as “temporary solution for a constant criminality”, saving them from further criticisms. They are often felicitated by rewards, promotions and hero-worshipping rather than subjugating them to proper investigation and accountability in cases which so demand. Thus, impunity gives the police an indefinite power and they often resort to violence for settling issues. As rightly explained in Jaspal Singh Gosain v CBI, that impunity and immunity are the biggest barriers in prosecutions involving extra-judicial or custodial death. Hence, the entire society is somewhere at fault for such human rights violations and infringement of the rule of law.  

The Staged Encounter of Rule of Law

Slow-moving criminal justice and delayed judiciary system in the country is considered to be the second prominent reason for arbitrary actions of the police. The reason why people most often accept the “knee jerk vengeance system” over “due process of law”. But does this give an alternative to justice or justification for exceeding powers conferred on the law enforcement agency? This denies both the victim and allegedly accused the right and dignity of a fair trial. 

In Iqbal Ismail Sodawala v The State of Maharashtra, it was emphasized that it is the procedure that spells much of the difference between the rule of law and the rule of whim and caprice. Prolonged and continued non justified custodial deaths and encounters ignore the court precedents, guidelines so prescribed and existing provisions of rule of law and international human rights.

Hon’ble Chief Justice of India, Justice S.A Bobde, quoted with respect to PIL in the encounter of Vikas Dubey; “It is not only one incident that is at stake; what is at stake is the whole system”. The constitution for a reason has adopted the doctrine of separation of power. The doctrine is violated the moment it deprives an accused of getting shelter of “court of law”.  Such activities are not only a blot on the judiciary but a sheer example of non-compliance of law resulting in illegitimate actions and contempt of court.

Such actions of the police are only justified to the extent, if they use it for self-defence or when it becomes necessary to arrest the person accused of an offence punishable with death or imprisonment for life. In Devinder Singh & Ors vs State of Punjab, the apex court in respect of Section 197 of the Code of Criminal Procedure observed that the protection of ‘sanction’ to government servants cannot be camouflaged to commit crime. The offence must be directly and reasonably connected with social duty to require sanction. It is no part of social duty to commit offence. It was in Prakash Kadam vs Ramprasad Vishwanath Gupta & Anr, that the court held that if a fake encounter is proved against policemen in a trial, they must be given the strictest of punishment that could even be capital punishment in rarest of cases. 

Conclusion 

The criminal justice system also constitutes within itself the law enforcement agency, whose primary goal is to control crime and protect the rights of the public. This is the rule of law in quintessence. But conduct such as custodial death and extra-judicial killings have an adverse impact not only on the judicial system but also on law enforcement as it destroys their picture as a whole. The very act of glorifying “unlawfulness” might destroy people’s confidence in the judiciary and criminal justice system. Such conduct creates a vicious cycle of continuous violation of law and rights making the “rule of law” nothing but a mukhdarshak (mute spectator). Law enforcement wings and executive bodies connect such activities with a certain moral authority that they owe to the State, the same moral policy which is deprived of due process of law and fair trial. This situation demands an active involvement of the apex court and other high courts of respective states to investigate such cases on a suo-moto basis. This will send a strong message that it is not fine to act outside the law and the constitution.


About the Author: Shiv Sang [2016-21] is pursuing B.L.S.LL.B (Hons) from Dr. D.Y Patil College of Law, Navi Mumbai.

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